In 1993, a magistrate judge issued a warrant authorizing the search of Paul and Erma Berger's Montana ranch for evidence of the taking of wildlife in violation of federal law. Later, a multiple-vehicle caravan consisting of government agents and a crew of photographers and reporters from CNN proceeded to the ranch. In executing the warrant, the federal officers allowed the media crew to accompany and observe them. Subsequently, the Berger's filed suit, asserting that the officials, special agents of the United States Fish and Wildlife Service and an assistant United States attorney, had violated their rights under the Fourth Amendment. The District Court concluded that the officials were entitled to qualified immunity, as no clearly established law protecting individuals from the commercial recording of a search of their premises existed at the time. The Court of Appeals reversed.

Question

Do federal agents violate the Fourth Amendment's prohibition on unreasonable searches and seizures when they let representatives of the news media accompany and observe their conduct in the execution of a search warrant?

Yes. In a per curiam opinion, the Court held that, although the agents did violate the Fourth Amendment, they were entitled to qualified immunity. The opinion stated that "police violate the Fourth Amendment rights of homeowners when they allow members of the media to accompany them during the execution of a warrant in their home. We also hold there that because the law on this question before today's decision was not clearly established, the police in that case were entitled to the defense of qualified immunity." Justice John Paul Stevens, concurring and dissenting in part, argued that the constitutional rule recognized had been clearly established long before 1992.

I represent the Marshals Service officers in Wilson and all the officials in Hanlon.

There are two issues in these cases: the constitutional issue itself and the further issue of whether in any event these officers should be held personally liable for money damages when, at the time they acted, the law was not clearly established and it was not apparent that their conduct violated the Fourth Amendment

We submit that however the Court decides the constitutional issue is a matter of first impression in this case.

Mitchell v. Forsyth compels the result that qualified immunity should be upheld for these officers here.

Turning first to the constitutional issue, as framed by the Court, the issue is whether law enforcement officials violate the Fourth Amendment when they permit members of the news media to accompany them in order to observe and report on their execution of a warrant.

We submit that it would be wrong to erect a per se rule that in all circumstances such conduct is improper.

Certainly to the extent that the search in the Hanlon case involved open fields or had the arrest of Dominic Wilson occurred in a public place, it would be unproblematic that the media accompanied the officers and observed and reported on their execution of a warrant.

As a larger matter, moreover, there are many instances throughout this country every day in which third parties accompany officers as they execute warrants, and this has been true since the inception of bench warrants.

There are many different circumstances.

They may be there to join in performing the search or the seizure in assistance of the officers.

They may assist the officers in other more tangential ways: provide clerical help, translating, identifying evidence

They may also help facilitate the law enforcement objectives that are served by procuring and implementing the warrant itself.

Justice Souter: Well, let's... let's get to the help that you claim was provided here.

What's your argument here?

Mr. Cordray: Your Honor, as reflected in the Justice Department policy in the U.S. Attorneys' Manual in effect at the time of the Hanlon search and...

Justice Souter: It has since been... that section has since been repealed.

Is that correct?

Mr. Cordray: Since been amended.

That's correct.

Yes.

Justice Souter: Amended out of existence as I recall.

Mr. Cordray: No.

Modified.

Modified with respect to the execution of a warrant.

Justice Souter: How does it read now?

Mr. Cordray: It... it still is the case... this is set forth in the appendix to the blue brief in the... in the Hanlon case... that law enforcement officers may assist the news media in reporting on and observing and videotaping...

Justice Souter: Does it say that they may take members of the media into people's houses, into private places...

Mr. Cordray: It doesn't speak to that, but it has now specified that they should not facilitate media accompaniment in the execution of a warrant, Your Honor.

However, at the time the policy certainly countenanced such conduct and, in fact, encouraged it.

However, the purposes served are the same ones that were served as... as stated in that policy, which are to promote the aims of law enforcement by deterring criminal conduct and by enhancing public confidence.

Justice Souter: Well, why do you have to take photographers into someone's house to aid law enforcement in that respect?

I mean, you can have a news conference when it's over if you want to.

I don't see why you... you have to take people into private places.

Mr. Cordray: This Court has held that the Fourth Amendment doesn't require a least intrusive means test as long as the conduct is reasonable.

Justice Souter: No.

I just want to know whether there's anything substantial to this or whether it's... whether it's fluff.

It sounds like fluff.

Mr. Cordray: Well certainly, Your Honor, to the extent that the media are permitted to give a firsthand objective account of the actual events, that facilitates accurate reporting on law enforcement functions, and it may be quite helpful in preventing abuses in instances.

Justice Scalia: But why just the media, Mr. Cordray?

Do... do you know of any other area of law in which the... the media, quotes, have been given special constitutional privileges that... that John Q. Public wouldn't have?

Mr. Cordray: No, Your Honor, and no one contends that the media should have special privileges here.

Justice Scalia: So, they could have brought in maybe their sister-in-law to... to watch the thing too as well.

Is that... is that it?

Mr. Cordray: Many law enforcement departments around the country do have a public ride-along program that will permit public to ride along with officers and observe...

Justice Scalia: Do they drive right into the house?

Justice O'Connor: Yes, right into the house or... or inside premises on a search warrant or... or is the program more one of letting them ride in squad cars and see whatever occurs on the street?

Mr. Cordray: Well, there are a variety of such programs, and I'm sure that in various circumstances...

Justice O'Connor: Do you know of any that allow private citizens to accompany officers inside dwellings to execute a search warrant?

Mr. Cordray: Well, yes, Your Honor.

The Marshals Service policy at issue in the Wilson case in place at the time clearly countenanced... page 7 of the joint appendix...

Justice Souter: No, but your argument was that there were... there were... throughout the country, there was a practice of ride-along, and our question is do they ride right into the house.

Mr. Cordray: Yes, Your Honor.

We... we have...

Justice Souter: Do you have specific instances in which this is going on?

Mr. Cordray: We have... we have cited to the Court the Fletcher case from the Florida Supreme Court which recognized, as a matter of common usage and custom at the common law as of 1972, that it was common practice to allow media to accompany police...

Justice Scalia: No.

Mr. Cordray: even into private property or residence...

Justice Souter: I think the question... excuse me.

I think the question that we're... we're pursuing is, are individuals other than those in the media going into people's houses for the execution of warrants in a capacity simply as observers, not performing any law enforcement function?

And I... I think we got... several of us I guess got the suggestion from you that the answer to that was yes, and we want to know whether that is specifically correct.

Is there a practice out there in the country, apart from the Marshals Service, of taking members of the public, performing no law enforcement function, into private places during the execution of a warrant?

Mr. Cordray: That's where I beg to differ.

The purpose of a public ride-along program, as with the media ride-along program, is to serve law enforcement purposes.

That's the whole... it's not merely for someone's entertainment value or to satisfy someone's curiosity.

Justice Souter: All right.

We'll... we'll accept that qualification.

Are members of the general public going into people's houses during the execution of the warrants?

Is this a common practice?

Justice Scalia: We'd just like to know that.

Mr. Cordray: I... I can't speak to that one way or another, Your Honor.

Justice Souter: Do you have any instances?

Mr. Cordray: I can speak to the fact that it was recognized at the common law as of 25 years ago, that it was common practice around the country for the media to accompany...

Justice Stevens: Mr. Cordray...

Justice Scalia: For media to accompany, but not for private individuals.

As far as you know, it is not and has never been common practice for police officers to bring in non-media people to show that... that everything is open and above board.

Mr. Cordray: I... I can't speak to that one way or another, Your Honor.

Justice Scalia: Can you answer my question?

As far as you know, there was no such practice.

Mr. Cordray: I believe that's right, but I wouldn't want to concede that...

Justice Scalia: Do you know... do you know of any... do you know of any such practice?

Mr. Cordray: I know that there are public ride-along programs.

I'm sure they have different components.

I don't know for certain that they contemplate entry into a home, but they do contemplate the public attending or accompanying officers.

Justice Ginsburg: May I... may I ask you specifically about the law school program?

There are law schools that do have their students ride along.

Indeed, some of them have had professors who have written books about their ride-along experiences.

Are there controls on that kind of ride-along to avoid the unnecessary intrusion on people's privacy?

Mr. Cordray: I'm certain that they are, just as a matter of common sense practice and to avoid potential lawsuits and the like.

I can't at firsthand speak to law school programs around the country, but I do believe that they are fairly common.

Chief Justice Rehnquist: In the... in the Montana case, there was no entry into the house by virtue of the warrant.

Justice Breyer: Isn't that true?

Mr. Cordray: That's correct.

There was no execution of the warrant in the home.

The only entry into the home was accompanying Mr. Berger...

Justice Breyer: By consent?

Mr. Cordray: By consent to explain the situation to his wife so there wouldn't be a misunderstanding.

Justice O'Connor: But there was an entry into sheds and outbuildings, as I understand it.

Mr. Cordray: Correct.

Justice O'Connor: With regard to those, does the evidence disclose whether those buildings had open doors or anything like that or... or what do we know about those sheds and outbuildings?

Mr. Cordray: The search in the Hanlon case was executed in two different places, in open areas on the ranch, which I think fairly clearly would fall within the open fields doctrine, although it is private property, and at the same time in outbuildings.

And the record, as... as far as I can tell, does not disclose for certain one way or the other whether they were within the curtilage or not.

But they may well be.

I think there is a constitutional argument that they are open fields...

Justice O'Connor: And that issue wasn't resolved below because it was a... pretty much a per se rule applied, I take it.

Mr. Cordray: I think that's right, both ways, by the district court in our favor and by the court of appeals...

Justice Scalia: Well, do you understand the open...

You don't really know whether open... whether sheds, closed sheds at least, that are outside the curtilage come within the open fields doctrine.

We haven't... we haven't held one way or another on that point, have we?

Mr. Cordray: I don't believe the Court has specified all the details of that, no.

Justice Kennedy: But you don't understand the... or maybe you do... the open fields doctrine to permit a police officer to stay on an open field if the owner tells him to leave, do you?

Mr. Cordray: As I understand the open fields doctrine, it would because the Court has said that searches of open fields, even though they may be private property, do not implicate the Fourth Amendment.

And, therefore, I... I think that that's correct, although again I don't believe the Court specifically addressed that.

Justice Kennedy: But in the... in the Oliver case, the Court was referring to the fact that officers happened to be in an open area and they were concerned with viewing something in an open field from a highway.

But in... in... in this case, the police and the accompanying news people demanded, in effect, entrance and had the right to enter under a warrant...

Mr. Cordray: That's correct.

Justice Kennedy: and... and threatened the owner with... with imprisonment if... if he obstructed their search.

So, it seems to me that's quite different.

I... I'm not sure the open fields doctrine would apply if you told the police officer to leave.

Mr. Cordray: I think it's an open factual issue in this case, and I think what's germane to the issue that the Court has framed is that there was no execution of a warrant in a home in that case.

And if this Court is particularly concerned with execution of a warrant in a home, that would not be implicated on the facts of the Hanlon case.

Chief Justice Rehnquist: Well, supposing there's a policeman that's standing out on your front lawn, and you tell him, get off, and he says, no, I want to look in your window.

Mr. Cordray: [Laughter]

Chief Justice Rehnquist: I mean, is that a trespass violation or a Fourth Amendment violation or what?

Mr. Cordray: As here, the police are operating pursuant to a valid warrant, and it's been determined in both cases that they were properly executing the warrant.

In a... in a situation where the police are looking through a window, they may or may not have right to be at the vantage point they're at...

Chief Justice Rehnquist: I think that bears on the open... open fields question.

Mr. Cordray: It may.

It may, and again I think that's an open factual issue in this...

Justice Kennedy: Why do you need a warrant under the open fields doctrine?

Mr. Cordray: I think you would not need a warrant, although perhaps in an abundance of caution to avoid any problems that might arise in later litigation or motion to suppress, certainly the better practice would be for the police to obtain a warrant, as they did here.

But in any event, to return to the...

Justice Scalia: Of course, just because the police can... can play around in open fields, it doesn't mean that they can bring along anybody else they want to play in the open fields.

Mr. Cordray: No, but certainly...

Justice Scalia: So, I mean, even if you resolve the open field question, there's still the further question of whether whatever open fields immunity from the Fourth Amendment the officers have extends to the... the officers bringing along somebody else as well I assume.

Mr. Cordray: I think that's correct, but that's why I thought it was important to emphasize the Court should not erect a per se rule against media accompaniment in all circumstances where a warrant is involved.

In many instances, a warrant would be executed in such a way as to not even implicate Fourth Amendment interests.

It might be executed in a public place.

It might be executed in an area of open fields.

Certainly the nature of the intrusion is much reduced in that setting, and... and across the board, across the spectrum of different possible settings, each of them somewhat fact-specific, each of them raising maybe a greater or lesser extent of intrusion, those are factors that would be relevant in trying to draw this balance.

Justice Scalia: But as you put it, we shouldn't adopt a rule regarding media accompaniment.

Mr. Cordray: Correct.

Justice Scalia: So, it is... it is part of your case that... that... that there's a... a different rule for media, and that... and that it's... it's better to bring media along than to bring your sister-in-law.

Mr. Cordray: I think it's... it's more... more beneficial in certain respects and it's more of a concern in certain respects.

The Court...

Justice Scalia: Personally I'd rather have your sister-in-law along than...

Mr. Cordray: Perhaps.

The Court framed the issue in terms of media, but in general the Court... the Court has... has... has never addressed the issue of any third parties coming along.

We don't contend that the media have a special, privileged constitutional right of access.

They do not under this Court's case, but they as surrogate for the public could potentially be... they should not be discriminated against.

It's not as though the media should be the one individual not permitted to do what private individuals might otherwise be permitted to do...

Chief Justice Rehnquist: It's fairly common, isn't it, Mr. Cordray, to bring along the claimant to stolen property with the search so that he... it's his property presumably if they're successful, and he should identify it?

Mr. Cordray: Yes, Your Honor.

There are a variety of practices where third parties are permitted to accompany police and have been thought to be without problematic discussion reasonable under the Fourth Amendment.

Justice Kennedy: But those are to aid in the specific search, not for some more systemic purpose of criminal administration.

Mr. Cordray: In many cases, that's true, but there are also a number of instances in which that really can't be maintained.

For example, in the Hanlon case, the assistant prosecutor, Kris McLean, accompanied the officers.

It wasn't contended that he was helping to execute the particular search, but he was there serving the same objectives for which the officers had sought and obtained a search warrant in the first place to enforce the Federal wildlife laws.

He was probably going to be prosecuting any charges that might be brought, and it was thought it would useful for him to attend and observe the execution of the warrant.

Chief Justice Rehnquist: Well, wouldn't there be... wouldn't there be some purpose too to take along someone who was a lawyer in case you run into some uncertain Fourth Amendment situation?

Can you go ahead and break down this door or should you get a warrant or something like that?

Mr. Cordray: I think that certainly be reasonable, although it's not contended that that was the case here in this case.

But again, I think what's important is under Michigan v. Summers is that the Court needs to apply a reasonableness standard.

I think that's agreed among the parties here.

The specific requirements of the Fourth Amendment don't speak directly to this other than the reasonableness clause, and it's a balance between the nature of the intrusion on the one hand and the objectives served by the practice on the other hand.

Justice Souter: Well, does it then all boil down to the value that the media provide to law enforcement when they go into the house.

Is... is that the nub of the case?

Mr. Cordray: I think that's an important factor.

Justice Souter: That's what we have to value against the privacy intrusion.

Mr. Cordray: I think that... that is the one side of the balance in all of these cases.

The other side of the balance may change.

It may be of greater concern, of lesser concern in various circumstances, but I think that's correct, Your Honor.

That would be the balance...

Justice O'Connor: Do you say here that the value of having media coverage of this particular execution of a search warrant outweighs the privacy interests of the ranchers who were searched?

Mr. Cordray: Again, we think...

Justice O'Connor: Whose property was searched.

Mr. Cordray: We think in the Hanlon case that's... that's correct, in particular because they were merely searching outbuildings and open areas.

They were... they were... there was a search that did not involve criminal conduct that appeared to involve any...

Justice O'Connor: Well, let's... let's assume for the moment, since it hasn't been decided, that some of these outbuildings were within the curtilage and therefore the same rules would apply as... as to the home itself.

Now, how do you weigh that balance if it... if it involves that?

Let's say a search of the home.

Mr. Cordray: I think that there the fact... the fact of entering a residence is a... is obviously an important consideration.

It is... it is a consideration that raises the nature of the intrusion and magnifies it.

So, certainly that's a concern.

On the other hand...

Justice O'Connor: So, how... how do we weigh the balance where maybe there is in some broad sense a value to having public information about it but, on the other hand, is a very weighty interest on the part of the homeowner to have privacy within the home?

Mr. Cordray: Yes.

Justice O'Connor: We have valued that very highly.

Mr. Cordray: That's correct.

Justice O'Connor: So, how do we weigh that balance in your view?

Mr. Cordray: In our view, we would suggest that in any case where we're talking about execution of an arrest warrant, not involving a search that's going to be into private papers or personal effects, we can pretty much adopt a general rule...

Justice O'Connor: But inside the home.

Mr. Cordray: That's right.

That execution of an arrest warrant is going to be generally reasonable to allow medic accompaniment because an arrest is a public event.

Justice O'Connor: Well, but I... I didn't pose arrest warrant.

I posed... which is involved in the other case... a search warrant for items executed in the home or within the curtilage.

Mr. Cordray: I think that it... it's fairly clear that as we proceed along a spectrum here, a search warrant in the home is more problematic than an arrest warrant.

I think it's more problematic than a search of outbuildings, certainly more problematic than a search of open fields.

Yes, and that...

Justice Scalia: Mr. Cordray, could... could I pursue the value to law enforcement that... that having the media along is?

Mr. Cordray: Yes.

Justice Scalia: I... you say in assistance of law enforcement.

I... I assume the means that to assure that everything is open and above board, that they're not being brutal, that they're not exceeding the limits of their authority.

Justice Breyer: Is that right?

Mr. Cordray: That's certainly much of it.

I think also there is the...

Justice Scalia: What is it beyond that other than PR which...

Mr. Cordray: Well, the PR itself is very important.

I mean, it certainly helps to deter criminal conduct for people around the country to know that the officers are aggressively pursuing crime.

Criminals often think they're not going to be caught.

If they know that the officers are aggressively pursuing crime, they may think twice before they...

Justice Scalia: Just photographing them going into the building saying these officers are, you know, going in and... and they're going to do a search.

Do you have to be there while they're opening dresser drawers?

Mr. Cordray: No, not necessarily.

And again, that's... that has to do with the nature of the intrusion.

But standing alone...

Justice Scalia: It seems to me the principal value you're appealing to is the value of making sure that... that law enforcement is conducted fairly and properly.

Nobody has a greater interest in that than the person being searched.

So, why don't you just ask the person, before you bring in the television news crew, you know, we're going to do you a favor.

To make sure that this...

Mr. Cordray: [Laughter]

Justice Scalia: that this search is going to be absolutely fair, we have a television crew along.

Would you like them to come in to be sure that this search will be very fair?

Mr. Cordray: They could do that, and certainly they could...

Justice Scalia: It seems to me they ought to if that's the principal value of...

Mr. Cordray: Perhaps, but... but it's not a silly... it's not a silly point.

It shouldn't merely evoke laughter.

I mean, it's not as though police know ahead of time that they're going to commit an abuse or they're not going to commit an abuse.

They... they deal with unforeseen circumstances, and having the third party present may well deter abuse.

Justice Scalia: My... my point is why don't you ask the homeowner if he wants that protection?

Why force it upon him when he'd rather... he trusts the police force and values his privacy more.

Mr. Cordray: They certainly could do that.

In... in various cases perhaps they should do that.

Whether they are obliged to do that in all cases, I guess is part of the calculus...

Chief Justice Rehnquist: Well, I... I suppose too that some sort of photographic presence might uphold the validity of the search against complaints by the... the person who's being searched.

Mr. Cordray: In fact, that was true in the Hanlon case here.

Justice Scalia: Are there no photographers other than those in the media?

Couldn't you bring along... I thought there were police photographers.

Mr. Cordray: There are police photographers.

They may or may not be available.

It might be within the discretion of the officer to decide, gee, we have a photographer here.

Gee, this means that might be the best way to execute it on the spot.

Typically those decisions have been left to the discretion of officials who must implement these policy...

Justice Souter: I take it you're not arguing here that the photographers were brought along because there was no available police photographer.

Mr. Cordray: We don't know that one way or another.

Again, as a matter of objective reasonableness, the fact that their photographs or videotape could be used, as in Hanlon they were used to resolve the consent issue, may be again a part of the calculus.

Justice Ginsburg: Mr. Cordray, as I'm listening to your argument and you keep saying no per se rules and it depends on what the particular facts and circumstances are, I have a certain deja vu feeling, and it relates to the old days when this Court was trying to draw a luggage line, telling the police they couldn't search the... the green suitcase but they could search the paper bag, and then finally they decided in Ross, no.

The police have to know going in what they can do and what they can't do.

And your argument seems to me to be going back to the time when, well, we'll decide after the fact and there will be no rules going in.

Isn't there some real importance to being able to tell the police in advance what's okay and what isn't?

Mr. Cordray: Yes, Your Honor, I think there is.

And as I say, this Court has never addressed this whole general area who can come with police, and so some guidance will be useful in this case.

But to draw bright lines at the outset in a... in a reasonableness balancing area might or might not be prudent.

Here I think there are certain bright lines that could be drawn.

Anytime an arrest warrant is being executed, I think in general it will be objectively reasonable to permit media to accompany and observe.

If a search warrant is being executed not in a residence, in an outer area, I think per se that probably will be acceptable to allow accompaniment.

If you have a search warrant in a home that's going to involve rummaging through private papers and personal effects, perhaps you could... you could determine as a general matter that might well be unreasonable.

I think there are some areas where clearly it would be unreasonable.

Any search involving physical invasion of the body, body cavity search or the like, just as the number of officers present in such a search is always minimized, I think any third party being present would be per se unreasonable.

Justice O'Connor: Now, we also have an issue I guess in the Hanlon case concerning audiotapes that were made that... while the officers and the media were in the house.

Mr. Cordray: Correct.

There was an audiotape made of what discussion occurred as Mr. Berger and the officer were speaking to Mrs. Berger.

That's unproblematic I think...

Justice O'Connor: Should we make any distinction between audiotapes and videotapes?

Mr. Cordray: I don't think so, Your Honor, but certainly audiotapes have been directly addressed by this Court in terms of the cases of people wearing a wire, White v. United States, Lopez, more recently Caceres, in which the Court has ultimately found there's not a constitutional problem when an individual is speaking to a government agent, even if they don't know that person to be a government agent.

Here by extension, they knew full well they were speaking to Federal agents.

I don't think there could be a reasonable expectation of privacy in those conversations.

As to whether the...

Justice Kennedy: Your argument so far lays the groundwork for you to talk about the second question which is whether or not these principles were clearly established.

Perhaps you could address that.

Mr. Cordray: Sure.

Thank you, Your Honor.

The Mitchell v. Forsyth case on qualified immunity is on all fours with this case.

There there was an allegation that the Fourth Amendment was violated.

It's a wiretapping case.

At the time of the actions, there were only two Federal decisions, both unpublished, which had upheld the legality of such conduct.

It was a fairly common practice, had been occurring episodically for 25 years.

Justice Kennedy: Well, the Fourth Amendment doesn't talk specifically about wiretapping, but it certainly talks about houses and personal effects.

Mr. Cordray: That's right.

And eventually in the Keith case, this Court ultimately resolved that such conduct was unconstitutional, but the decisions that held that postdated the events in question in the Mitchell case.

All of that is on all fours with this case here.

The only decisions at the time here had indicated that such conduct was...

Justice Stevens: Well, isn't there a distinction between going into somebody's home and... and wiretapping?

I mean, going into people's homes has been something considered questionable under the common law going... for many, many years.

Mr. Cordray: That's correct, Your Honor.

There is... there is legal precedent that certainly makes that a harder issue in this case, and depending on how the Court rules, it may become clear now that... that this practice is unacceptable.

Justice Stevens: Do you think we can charge the officers with knowledge of Semayne's Case or the principle in Semayne's Case?

That's the British case involving service of civil process in a home, and the court itself distinguished between civil process and criminal process, which it said the public safety supersedes the private.

Blackstone echoed that and that's generally been this Court's approach, for example, and Payton recognized that an arrest warrant permits an intrusion into the home.

So, again, I think to extrapolate from older, especially British cases and early cases general principles to say that officers must have known how those apply in these specific instances would be... would be harsh, particularly given that the courts that had attempted to apply such principles had found that this conduct was... was constitutional.

And the only decisions that have ever been cited to the contrary postdated these events.

Moreover, if this were an unusual practice, if it had not been engaged in except very occasionally around the country, that might explain the lack of this...

Justice Stevens: They might have questioned how frequently it's done.

You rely heavily on the Marshals Service policy.

Mr. Cordray: Not only that, Your Honor.

Justice Stevens: Well, you do rely on that heavily, do you not?

Mr. Cordray: We do, but the Fletcher case...

Justice Stevens: Well, let me just ask you a question about the Marshals...

Mr. Cordray: Yes, sir.

Justice Stevens: Can you point to me the part of the policy that makes it clear they could take people into the home?

I didn't find that in what cited to me.

Mr. Cordray: Page 7 of the joint appendix in the Wilson case contemplates that there may be occasion.

It says, if the arrest is planned to take place inside a house or building, agree ahead of time when the camera can enter and who will get the signal.

That isn't an express authorization in all circumstances to take media into a home, but it certainly contemplates that a... a rule that would say you can never allow the camera and the media...

Justice O'Connor: Well, I thought the sheriff, the Montgomery County Sheriff, in his deposition testified that permitting civilians to enter a home during the execution of a warrant wasn't permitted there.

Mr. Cordray: That was... that was his view and that may be his policy.

There are a variety of policies around the country.

I think it's important...

Justice O'Connor: Well, that might have been clearly established at least in Montgomery County.

Mr. Cordray: Well, I... I don't think so, given that... given that the case law at the time did not clearly establish it, and judges since have... have disagreed, you know.

And this was a practice that was common.

We point to the Fletcher case from the Florida Supreme Court which recognized this as a common practice at the common law as of 1972, and the Prahl case on remand to trial court in Wisconsin found this to be a common practice.

Justice O'Connor: Well, in Wilson v. Layne, the facts were... were pretty extreme in terms of an invasion of privacy in the home.

It occurred in the early hours of the morning when the couple were asleep and were not, you know, adequately dressed.

I mean, it was an amazing invasion.

And you think on that balance that we would not be concerned about the privacy interests in that situation simply because it was an arrest warrant?

Mr. Cordray: I think certainly the Court would be concerned.

I think the fact that it's an arrest warrant weighs in the balance.

Justice O'Connor: But you think we should have a clear rule that in executing an arrest warrant, you can take outsiders in who aren't there to help with the execution of the arrest warrant?

Mr. Cordray: I would tend to suggest a more fact-specific approach to these cases, but if the desire is to draw some bright lines, that may be one that could be.

If I could...

Justice O'Connor: That might be a very easy clear line to draw.

Mr. Cordray: It could be.

If I could reserve the remainder of my time for rebuttal.

Argument of Lawrence P. Fletcher-Hill

Chief Justice Rehnquist: Very well, Mr. Cordray.

Mr. Fletcher-Hill, we'll hear from you.

Mr. Fletcher-Hill: Thank you, Mr. Chief Justice, and may it please the Court:

There are two fundamental facts that establish the qualified immunity of the three deputy sheriffs I represent.

The first of those is that the most able lawyer researching this issue in 1992 would have found no cases from any court condemning the mere presence of media when a warrant is executed lawfully as a constitutional violation.

The only cases then in existence, in fact, held to the contrary, that media presence at most was a tort under common law principles if... if the media was brought inside a home.

The second point is that...

Justice Stevens: May I ask... suppose it had been clearly established that it was a common law tort to bring the media into a home, but there had been no decision on interpreting section 1983 or the Fourteenth Amendment.

Would you think under those... under that assumption there would be qualified immunity?

Mr. Fletcher-Hill: No, Your Honor.

I think it would still be an open question whether... whether this Court would eventually incorporate those common law principles into the Fourth Amendment.

Justice Stevens: Well, assume that... assume that we on the first time we... we decide yes, it's a clear violation.

The only issue we have to face is, should the officers have been aware that they shouldn't go in if their only restraint on going in was a well-established common law rule... a common law tort rule.

Mr. Fletcher-Hill: No, because the... the doctrine of qualified immunity would operate only as to the constitutional principles.

There may be other immunities for the officers concerning the common law, and in fact, one... one could find the situation where the common law would... would suggest to these officers that they should not do this.

But as a matter of Fourth Amendment jurisprudence and the Bivens or 1983 action against the officers, I think the law would still not be clearly established as a matter of constitutional principle.

Justice Scalia: Don't you think it's a clearly established constitutional principle that it is unreasonable to commit a tort in... in the course of the search?

I mean, once you... I mean, I think it's an open question of whether... whether it was clear that this was a tort, but if it was a tort, I think the game is up.

Surely you're not authorized to commit a tort in the course of a search.

Mr. Fletcher-Hill: No, Your Honor.

Justice Scalia: Wouldn't that make the search automatically unreasonable?

Do you need a case that says that?

Mr. Fletcher-Hill: Let me give an... an illustration.

The technical issue of trespass may be such that in the absence of a warrant, something would clearly be a trespass.

But if the officer is in the position under Fourth Amendment jurisprudence of having authority to come into the house based on a warrant, then that potential superior authority of the officer would overcome the tort violation.

Chief Justice Rehnquist: Well, supposing you... you have... during a search or an arrest an officer commits what's later decided to have been an assault and battery.

You... you run up against the person in a way a court says there wasn't... that wouldn't make it invalid under the Fourth Amendment, would it?

Mr. Fletcher-Hill: That's correct.

You... you would still have the issue under the Fourth Amendment, but whether that use of force, which might admittedly be... be a battery at common law, is justified by the need to control, under Michigan v. Summers, the people who are in the... the premises where the warrant is being executed.

Justice Scalia: There occurs to me an even better answer than that which is that the open fields doctrine explicitly says that you can commit a tort and not violate the Fourth Amendment.

Mr. Fletcher-Hill: Well, Your Honor, in many cases the... the tort issue and the constitutional issue are going to overlap very closely.

But in fact, this case, the Wilson case, provides a good illustration of where they don't overlap and where I think there's an important distinction.

The common law has arisen in the area of invasion of privacy to take care of situations of publication.

Justice Breyer: That's true.

But would you take me through the officer's thinking, the thinking of the reasonable officer?

He knows that the Fourth Amendment protects the security of a person in his house against an unreasonable search.

He knows that.

Mr. Fletcher-Hill: That's correct.

Justice Breyer: He knows a police officer normally has to get a warrant... normally... before he can go into that house in order to protect that privacy.

He has to have a very good reason to intrude on that privacy.

Now, a person knowing that... why wouldn't he think, well, obviously you can't bring in a person who isn't even mentioned in the warrant, which person is going to broadcast personal things to 10 million people?

I mean, if the lesser is forbidden, why isn't it obvious that the greater is?

And so, what I... what I want you to do is to explain what's the thinking of a person who knows the lesser is forbidden, but nonetheless he thinks it's reasonable to do the greater.

Mr. Fletcher-Hill: Your Honor, the... the thinking of the officers in this case is that, of course, it is a serious proposition to enter someone's house without consent to make an arrest, but these officers had, matching that issue, valid arrest warrants which they knew gave them clear authority to enter the house.

Justice Breyer: It couldn't... it couldn't be more important to broadcast this than it is to do the search in the first place.

So, why wouldn't you at least have to have it in the warrant?

Mr. Fletcher-Hill: No.

The... Your Honor, I think the entry into the house is met by the presence of the warrant.

The secondary...

Justice Breyer: Does the warrant refer to the... they have a right under the warrant to bring in the press?

Does it say anything about the press?

Mr. Fletcher-Hill: No.

I think the issue of the...

Justice Souter: In fact... if I may interrupt... doesn't the warrant say just the contrary?

Doesn't the warrant expressly limit itself to officials, to police officers of some sort?

Mr. Fletcher-Hill: Your Honor, that's correct.

The warrant is directed to peace officers.

Justice Stevens: Okay.

Justice Souter: So, the terms of the warrant limit it to peace officers.

How could an officer therefore reasonably believe that under the authority of that warrant he could take in other people regardless of what the general law might be if the warrant were less exact in specifying those to... to whom it gave authority?

Mr. Fletcher-Hill: These officers could believe that because at the time they operated, they were operating under the direction of the Marshals Service.

The media presence was...

Justice O'Connor: Well, but there was a Federal statute I believe in effect at the time.

It may still be in effect as far as I know in 18 U.S. Code 3105, and it says, a search warrant may in all cases be served by any of the officers mentioned in its direction or by an officer authorized by law to serve such warrant, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution.

Now, how do you read that statute as allowing private citizens or media ride-alongs?

Mr. Fletcher-Hill: If applicable at all, that statute would be applicable only to the Hanlon case which was a search warrant and not to the officers here who were executing an arrest warrant.

Chief Justice Rehnquist: Well, I suppose it isn't the fact that the statute limits the number of people who can serve the warrant, doesn't in so many words say that nobody else can come along.

Mr. Fletcher-Hill: That's correct.

And we have made no claim here that... that the media are entitled to help serve the warrant.

The officers must stay within the clear bounds of their authority under the warrant in serving it.

The media there... are there as mere observers.

Justice Souter: Well, if... if... if we take the word serve to mean those who may in fact be present, then I take it you're... you're out of luck.

There's no basis for... for arguing qualified immunity because there's no basis for... for arguing any colorable authority.

Mr. Fletcher-Hill: Well, Your Honor, I think a great deal of authority has... has come down to... for the proposition that non-law enforcement personnel may be present during the service of both search warrants and arrest warrants without...

Justice Souter: So, you're arguing that cases from... from other States which... which may have condoned this in the past override the terms of your warrant in deciding what it is reasonable for your officers to do.

Justice Stevens: Is that correct?

Mr. Fletcher-Hill: No.

The terms of this warrant only say that a... a peace officer is to execute the warrant.

Justice Ginsburg: Right.

Mr. Fletcher-Hill: And peace officers in this case in fact did execute the warrant.

The... the media personnel did not do anything to execute the warrant.

Justice Souter: Well, I... I... if... if we... if it is reasonable to read it as excluding others from participating in the execution of the warrant, then I take it by its terms your... your argument would be excluded.

Mr. Fletcher-Hill: It would exclude on the substantive violation, but I don't think it would exclude the issue of clearly established right because it would still be the case that these officers armed with those warrants would be operating under a Marshals Service policy arranged at the direction of others whom they did not have a reason to question and regular on its face, that is, the media participation...

Justice Souter: Their argument basically is the Marshals Service told us we could do it?

Mr. Fletcher-Hill: No.

At the time that these officers acted, it was... it was a common law enforcement practice to have ride-alongs.

There was no contrary authority from any court...

Justice Souter: Well, but when... when you say ride-along, are you saying that it was a common law enforcement practice to bring the media into the house in the execution of an arrest warrant?

Mr. Fletcher-Hill: I... I think the existence of a number of cases where exactly that happened...

Justice O'Connor: Well, but in Wilson v. Layne, we know what the Montgomery County Sheriff said, and he said it wasn't the policy.

Mr. Fletcher-Hill: That's true, and I think if anything, those statements by Sheriff Kight illustrate the predicament of these officers because what Sheriff Kight also said was as to this operation, he understood his own officers to be operating under Marshals Service guidelines which did permit this activity, and he himself would not condemn the conduct of his own officers at... at this time in 1992 because they were on loan to the Marshals Service and not operating under his own office's policies.

Justice Souter: Well, were they on loan in the sense that they were required to follow orders from the Marshals Service?

You spoke of their predicament, and I'm not sure that I know what the predicament is.

Were they... had they taken some kind of an oath to do what the Marshals Service told them to?

Mr. Fletcher-Hill: In fact, two of them were... were deputized for purposes... as deputy U.S. marshals for purposes of this operation.

Justice Souter: So, they were subject to line authority.

Mr. Fletcher-Hill: The... the authority under that program was directed from Mr. Layne, from Deputy U.S. Marshal Layne, as the supervisor in... in this geographic area.

Chief Justice Rehnquist: Thank you, Mr. Fletcher-Hill.

Mr. Fletcher-Hill: Thank you, Your Honor.

Argument of Henry H. Rossbacher

Chief Justice Rehnquist: Mr. Rossbacher, we'll hear from you.

Is it Rossbacher or bacher?

Mr. Rossbacher: Rossbacher, Your Honor.

Chief Justice Rehnquist: Mr. Rossbacher.

Mr. Rossbacher: Mr. Chief Justice, and may it please the Court:

The searches and seizures involved in the Berger case violate the core values and the core holdings of this Court in relation to the Fourth Amendment in five important ways.

First, the warrant was used as a general warrant, bringing private persons onto private property to search and seize for their private purposes.

The Revolution was fought, in part, to prohibit that.

Second, the conduct of the law enforcement officers in bringing the media, the private persons, on was not authorized by the warrant.

Their presence was not authorized.

In fact, their presence which had been guaranteed by an Assistant U.S. Attorney signing a contract on behalf of the Government a week before the warrants were obtained was concealed from the magistrate.

Chief Justice Rehnquist: Is it your position that if the warrant does not specifically authorize people other than peace officers to serve it that no such person can be brought along?

Mr. Rossbacher: That is in part our position, Your Honor.

Justice O'Connor: Even if it were, for instance, a search warrant in connection with a... a theft ring and the owner of the property was brought along to identify the goods or some expert in fingerprinting was brought along or something like that?

Mr. Rossbacher: We are not...

Justice O'Connor: You say absolutely not.

Mr. Rossbacher: No, Your Honor.

We think that 3105... I hadn't finished my answer.

I beg my... I beg your pardon.

We believe 3105... as Sir Matthew Hale's Pleas to the Court in 1600 said, you can bring a private person along as long as he is under the authority of the law enforcement officer and is there solely to execute the warrant and for that function.

Here it is undisputed that that did not occur.

In fact, the media...

Justice Scalia: Well, but...

Mr. Rossbacher: had signed a contract...

Justice Stevens: Just a minute, Mr....

Mr. Rossbacher: Yes, Your Honor.

Chief Justice Rehnquist: In... in answer to my question, you say that a person such as Justice O'Connor described could be brought along.

Mr. Rossbacher: Yes, Your Honor.

Chief Justice Rehnquist: And that it's not... not necessary to authorize it in the warrant.

Mr. Rossbacher: The warrant authorizes, as we understand it under section 3105 and the Fourth Amendment, law enforcement to bring along pursuant to that explicit authorization, which we believe is a constitutional authorization, people who are necessary.

And we're interested in exploring whether under your view other people brought in by the officers to help them identify goods, to take fingerprints, whatever it might be, to take photographs for them, for the police... now, is that all right even though they are not explicitly named in the warrant and although the warrant doesn't talk about such people?

Mr. Rossbacher: Yes, Your Honor, because the warrant is issued in the context of section 3105 being...

Justice O'Connor: How about the attorney in the Hanlon case who went along?

Mr. Rossbacher: We do not believe the attorney was authorized.

The testimony below and in the record is unequivocal that he performed no role in the search, and in fact, the evidence obtained from CNN...

Chief Justice Rehnquist: You say authorize, Mr. Rossbacher.

What do you mean by the word authorize?

Do you mean permitted under the Fourth Amendment or specifically authorized in some other way?

Mr. Rossbacher: Either.

Both, Your Honor.

In fact, he was a stranger to the performance of the warrant.

He was there to give a press conference, according to the materials we obtained from CNN, for making a TV show.

He was not there to perform any law enforcement function related to the service and execution of the warrant.

Chief Justice Rehnquist: But if he had been there to perform a law enforcement function, it would have been all right?

Mr. Rossbacher: If he had been designated as necessary by the executing agent under 3105...

Chief Justice Rehnquist: Well, now, where... where does all that come from?

You say designated.

That's all under 3105?

Mr. Rossbacher: Yes, Your Honor.

And under the unanimous cases that we've cited in our brief construing section 3105 from the circuits, Schwimmer, Clouston, all of these, the 3105 authorizes the executing agent to bring along a private person who is necessary, provided they are necessary and provided their activities are confined to execution of the warrant.

Justice Ginsburg: What about the law students in... in the clinic, in the law school clinic, as part of their educational program are riding along with the police, going in with the police wherever they go?

Mr. Rossbacher: I'm not aware, Your Honor, that they do go in with police wherever they go.

We do not believe that people who are there just to observe and not performing an essential task...

Justice Ginsburg: Well, what... what can in your... in your view, consistent with the Fourth Amendment, what can the academic, the student, do in the way of a ride-along?

What would... what would the limits be?

Mr. Rossbacher: They cannot enter pursuant to a search warrant or an arrest warrant into private property where the warrant is necessary.

The authority of the warrant... or the specific police power of the law enforcement officer is necessary to enter the property.

Justice Ginsburg: I'm giving you an example of a person who isn't there to identify anything.

He's not to aid the police.

He's there to be educated, to observe, and to advance his own education.

Mr. Rossbacher: We believe that's...

Justice Ginsburg: And so, I'd like to know... he's in the squad car, such a person.

Can he ever leave the car, or he's just waiting for the police as they go in and out to search, to seize?

Mr. Rossbacher: Presumably he can leave the car.

He cannot enter private property pursuant to the authority given to the police by the warrant.

Justice Kennedy: Just a slight variation on Justice Ginsburg's hypothetical.

Suppose... just assume this is right, but the... the optimum number of police for a search is... of a house is five.

But they bring along two police trainees, and they say, now, you just watch.

Is that permitted?

Mr. Rossbacher: Not if they're just watching, Your Honor.

If they are there to execute the warrant and it...

Justice Kennedy: No, they're not there... they're there just for training purposes.

Mr. Rossbacher: Then it is our view...

Justice Kennedy: So, the police have no way to train their... train their new recruits, their... their rookies.

Mr. Rossbacher: Not on private property, Your Honor, not in violation of the privacy rights and the core values protected by the Fourth Amendment.

Justice O'Connor: Now, you say private property.

How about the entry onto the ranch lands in Hanlon?

Mr. Rossbacher: Your Honor, there was no...

Justice O'Connor: Armed with a warrant.

Now, is there any violation of the Fourth Amendment by virtue of strangers to the execution of the warrant accompanying the officers on the open lands in... in Hanlon?

Mr. Rossbacher: We believe so, Your Honor.

Justice O'Connor: And what do you rely on for that?

Because there... we have cases dealing with a so-called open fields exception.

Mr. Rossbacher: I know you do, Your Honor.

I don't think that that... when you're in the open fields it is... it is clearly established as to what can be done there.

But what is clearly established is that no authority of the warrant can be used to justify private parties.

What's happening here... and I would like to correct a misstatement that I'll get to as to what was done with this warrant.

The warrant was represented to cover everything, including the house.

The press was brought along solely... and they have said this... solely on the authority of law enforcement officers to enter and, in essence, be immune from their... the consequences of their conduct under the open fields doctrine.

As a result, we believe that that's improper, and that does violate the Fourth Amendment.

Justice O'Connor: Well, I think the balance may well be different within a home or within closed structures in the curtilage than it is in open areas where presumably anyone, the mailman or anybody else, can drive up to the ranch house but can't enter the house.

Mr. Rossbacher: Your Honor, there is a problem with that and that is that in this case, CNN asserts that it has an absolute defense to charges against trespass, charges against any kind of tortious conduct because of the permission given by law enforcement to enter.

Their... their position is not that the First Amendment allowed them to do this.

Chief Justice Rehnquist: But we don't have that question before us.

Mr. Rossbacher: No, but it... it is problematical in that what law enforcement is doing here is, in fact, facilitating a tort explicitly.

They're attempting to immunize a tort.

And we think that that's inappropriate and improper and violates the Fourth Amendment.

In addition, it's not possible to argue that this was not clearly established.

Section 3105 and the cases that interpret it have said clearly for years that in fact law enforcement officers are not free to bring strangers to the warrant on private property except for the purposes of 3105.

Justice Kennedy: The... the problem with that in your case is the open fields doctrine might mean that the rules here are not so well established.

Mr. Rossbacher: Your Honor, let us look...

Justice Kennedy: It's a murky doctrine.

Mr. Rossbacher: But let us look at what happened here.

First, they entered the house pursuant to the claim that the warrant covered the house.

That was what triggered the entry.

There was no consent.

The officers have testified there was no consent.

Justice O'Connor: The Ninth Circuit...

Well, the lower courts have decide... the Ninth Circuit said there was.

And we're not going to...

Chief Justice Rehnquist: We... we don't reevaluate those things here.

Mr. Rossbacher: There was no factual finding of consent.

It was not litigated below in the district...

Chief Justice Rehnquist: The court of appeals said there was consent.

So, take it... take it from us...

Mr. Rossbacher: I understand.

Chief Justice Rehnquist: we're not interested.

Mr. Rossbacher: Even if there was consent, the position is that they could not bring in the press with a microphone to seize conversations protected by Silverman and these cases and Katz in the house, which is what was done.

It was done on 9 or 10 separate occasions.

They taped solely... law enforcement did not tape.

The tapes were not made available to law enforcement.

They were not in their possession, either video or oral tapes.

They were, in fact, refused to be produced in the criminal trial, and the Government in fact even refused to admit there was a contract here.

Justice Scalia: Do you agree, Mr. Rossbacher, that the agents did not search when they were in... when they were in the home?

Mr. Rossbacher: No.

They... they entered the house under a claim that they had a right to search the house, and they in fact went through the house, and they recorded in the house.

And we believe that is a search and a seizure.

Justice Scalia: Well, apart from... apart from the recording, is it your...

Mr. Rossbacher: We believe that there...

Justice Scalia: contention that they... that they conducted a search of the house?

Mr. Rossbacher: Your Honor, they entered the house and observed what was there.

Justice Scalia: Well, I mean, I... I have a lot of people come into my house.

I don't think everybody who comes into my house is searching my house.

Mr. Rossbacher: Your Honor, when they say that they're entering pursuant to a search warrant and they assert their absolute right to do that, when they enter...

Justice Scalia: That... that's out of the case as the Chief Justice has said.

We assume...

Mr. Rossbacher: I understand.

Justice Scalia: that they entered pursuant to consent.

Having entered pursuant to consent, did they search?

Mr. Rossbacher: We believe so, Your Honor, yes.

Justice Scalia: In... in any respect other than making the recording?

Mr. Rossbacher: They went through the rooms, yes.

Justice Scalia: I didn't ask whether they went through the rooms.

People who come into my house go through the rooms.

Mr. Rossbacher: They did not tear the place apart, Your Honor.

They went through the rooms...

Chief Justice Rehnquist: They didn't search.

Mr. Rossbacher: I don't believe, Your Honor, it's fair to say that when a law enforcement officer enters your house pursuant to a search warrant and a claim of right, that in fact he's not searching when he observes what he observes there and was free to testify about it.

Justice Ginsburg: If it was a search, does your position imply that... suppose they had found something in the house... that that evidence would have to be suppressed?

Mr. Rossbacher: Absolutely, Your Honor, that in fact, under Bumpers and under Schneckloth, in fact, having asserted on the...

Justice Ginsburg: My assumption is that it would have been all warranted because they did have a warrant.

Mr. Rossbacher: The warrant excluded...

Justice Ginsburg: Were it not for the media... so, in other words, I'm giving you a situation where the police had just gone in on their own, executed the warrant, they would have... they would have done everything according to law.

That bringing the media along you say makes it unlawful.

And my question is, to what extent do you go... does the media presence so taint the operation that what would otherwise have been lawfully seized becomes unlawfully seized?

Mr. Rossbacher: If the media seized it, as they did with the recordings, we believe it is like the extra mikes installed in the house.

Justice Ginsburg: Not the media.

The police... the police did...

Mr. Rossbacher: The police seized...

Justice Ginsburg: but they did it in the presence of the photographers who got it all live for CNN.

Mr. Rossbacher: We think it makes the search unreasonable, but we're not sure that it triggers the exclusionary rule because in fact what would be found would be found properly by the officers.

You're really talking more I believe with respect about the operation of the exclusionary rule.

Justice Ginsburg: So, you're... so, you're now giving me a different answer than the one you gave me initially.

Justice O'Connor: You say...

Mr. Rossbacher: I hope not, Your Honor.

Justice Ginsburg: Well, you told me I thought initially... or maybe I didn't phrase the question so that you were able to answer it precisely.

I asked you would the exclusionary rule apply to evidence seized under a warrant but in the presence of the press and captured on... on the press camera.

Mr. Rossbacher: Captured on the press camera, the press tape we believe would be... would be suppressed.

And officer's testimony as to him finding the evidence or the evidence itself would not be because that would not be in excess of the warrant, as you phrased your question to me, as I understand it.

But the seizure by the press, just as if the press wandered off by themselves into a shed and found evidence and seized it, would clearly be...

Justice O'Connor: But the evidence found by the police might fall within the inevitable discovery exception.

I mean, they're going to go in with a warrant and find what they find, wouldn't it?

Mr. Rossbacher: It might well, Your Honor.

It might be a hard argument to make if in fact the press goes off and... and films things and the police doesn't bother to look there and then later the tape shows it.

I mean, that would be a situation...

Justice O'Connor: Well, no.

The assumption we were talking about was officers with a warrant finding the evidence and nonetheless having the presence of the media.

Mr. Rossbacher: We don't think that that per se triggers the exclusionary rule, but we think that it is a general warrant.

We think it violates the Fourth Amendment, and we think that the private electronic... private electronic surveillance that took place here by the CNN is a separate search by a private party for their private purposes, the proceeds of which is not properly seized by the Government.

The cases of this Court involving the extent of a search, for example, Arizona v. Hicks and Andresen, we believe should inform the Court's consideration of what happened here.

The Court has been eternally vigilant and jealous of confining law enforcement officers to what is explicitly authorized.

For example, you can't turn over a Bang and Olafson box.

In Andresen, very clear in note 11 that the officers are required to minimize their conduct and minimize their intrusion.

Here, bringing the press, is absolutely designed to maximize the intrusion.

It is contemplated and was contemplated here that the intrusion into privacy would be broadcast nationally and internationally.

There could be no greater affront toward the right to privacy found by Winston and Soldal by this Court under the Fourth Amendment than to authorize worldwide broadcasts.

I would like to get to the argument of our opponents that in fact there were cases authorizing this and this was somehow widespread.

I would... I would submit to you there is no record.

The practice of bringing press people, or private persons for that matter, for private purposes into private homes was widespread.

Justice O'Connor: Counsel, do you know whether there are instances in which warrants have expressly permitted the inclusion of media in...

Mr. Rossbacher: I know of none, Your Honor.

Justice O'Connor: in a search warrant?

Mr. Rossbacher: And I think that... that to bring in... to expressly authorize private persons for their... for their private purposes, even as has been held by the Bills I court in the circuit to be inappropriate and constitutionally questionable; in addition, in the Sanusi case, by Judge Weinstein.

But there is a whole line of cases, Clouston and Schwimmer under 3105, and another line of cases which says that merely because law enforcement can enter for an appropriate purpose, for example, the Warren case, Coast Guard can enter to inspect your ship, but they can't bring a drug agent to search for drugs.

That's what happened here.

Law enforcement entered to search for poisons.

They brought along the press to search for... for TV footage or film whatever they wanted.

There's no... there's no limitation of the press coverage here to what the officers were doing.

It's... it's a ex post facto rationale.

Chief Justice Rehnquist: Your complaint is that they didn't actually concentrate on the... what the officers were doing, but simply conducted their own search?

Mr. Rossbacher: That is one of our complaints.

And they were free to do so.

In fact, some of the tapes show that they're out filming something and Mr. Berger says, what are you doing?

This is when Mr. Berger gets threatened with going to jail.

And Mr. Berger is directed away, is threatened with going to jail, and the press is out filming what they want within Mr. Berger's buildings.

So, there was no confining of the press to some limited role of even covering law enforcement.

This...

Justice Scalia: Well, you wouldn't... you wouldn't say that would be okay either, would you?

Mr. Rossbacher: No, I would not.

But I don't want the impression to be given that this is somehow some kind of very controlled, restricted, disciplined operation going on.

Justice O'Connor: But even if it were, your argument is exactly the same.

Mr. Rossbacher: That's correct.

And our argument is the circuit court opinions which look at minimization, all of this Court's cases that look with... at minimization of the intrusion and confining to the purpose of the warrant itself, not general law enforcement purposes, mandate and were clearly established at the time all of this took place.

The Second Circuit, the Fourth Circuit in Buonocore, and the Ninth Circuit all found that this was clearly established, and they also found that 3105 prohibited this conduct.

3105 has been on the books a long time.

Justice Stevens: I'm not sure 3105 really speaks to the issue because it talks about search warrants and it tells who's authorized to serve the search warrant.

It doesn't say anything about who may go along.

Mr. Rossbacher: But the cases in Schwimmer the... the circuit court decisions in Schwimmer and Clouston and the other cases that interpret it that are present in our brief do talk about the fact that the only justification for being along is because you're complying with 3105.

Chief Justice Rehnquist: Those cases aren't binding on us.

Mr. Rossbacher: No, Your Honor, but they...

Chief Justice Rehnquist: You can argue as to the clearly established point.

Mr. Rossbacher: Well, that's what I am arguing and I also think the statute clearly established it itself.

Under Harlow you say that, in fact, it's not just constitutional rights but statutory rights.

3105 we believe is the constitutional rule, but it also created a clear rule not to be searched by strangers to the warrant.

And so...

Chief Justice Rehnquist: Well, not to be searched.

But there... you know, if you're saying that the media did their own search, you have a stronger case under 3105 than if the media simply accompanied.

Mr. Rossbacher: Your Honor, if you look at the Wilson v. Layne facts, where the media takes photographs of these people, which it was free to publish, isn't that a search?

The constitutional issue in this case does not involve a balancing test.

It involves a bright line rule drawn at the front door of the home.

Our position is that any trespass into the home by the Government is per se a violation of the Fourth Amendment.

This authority, going back to the common law as old as Semayne's Case, makes it clear that when the police enter a home, they have the authority only to execute criminal process.

They cannot enter the home in order to execute civil process, even though civil process may serve many important public purposes.

It may be useful to have civil cases resolved and to have evidence, and yet, since Semayne's Case, it has been clear that the only authority the police have to enter the home is the authority to enter to execute criminal process.

Justice O'Connor: Well, they say that's what they were there to do.

They had a warrant and that's why they were there.

Mr. Willard: That's correct.

Justice Stevens: That's the argument.

Mr. Willard: That's correct, Your Honor.

They had an arrest warrant.

That arrest warrant gave them the implicit authority...

Justice Breyer: Wilson.

Mr. Willard: Yes, Your Honor.

I represent the plaintiffs in the Wilson case.

They had an arrest warrant which gave them the implicit authority to enter the home where they believed that Dominic Wilson lived, for one purpose, and that was to effectuate his arrest.

Entry of the media was entirely ultra vires of the warrant.

The warrant did not implicitly... it certainly didn't explicitly... didn't even implicitly authorize bringing along the media on a news gathering expedition.

In this case, it's very clear because the defendants have conceded that news media were not there in order to assist in execution of the warrant.

There may be some difficult, gray-area cases involving, say, trainees or prosecutors where there's some argument that they're there to assist in execution of the warrant.

I think...

Chief Justice Rehnquist: Well, wouldn't it be true that the media would never be there to assist in execution of the warrant.

It's hard to see how they could be of assistance.

Mr. Willard: That's correct, Your Honor.

The media, as far as we're concerned, is like the sister-in-law.

They're not there under any colorable reason to assist in execution of the warrant.

They're there for a different purpose.

Justice Kennedy: The trainee hypothetical was designed to probe whether or not there are any systemic interests that the law enforcement has extending beyond the specific search, and that would... that was why...

Mr. Willard: I... I understand, Your Honor.

And I think there may be situations where trainees would be authorized to assist in the event that they were needed in execution of a warrant.

If the violence erupted, they might be there in order to help out.

Similarly, prosecutors might be able to provide legal advice.

Justice Scalia: I mean, for trainees, don't they build, you know, facilities to train trainees?

I know they do it for firearms.

They don't take them along to just, you know, on the job training.

They...

Mr. Cordray: [Laughter]

Justice Scalia: Why can't they do the same thing for searches?

I assume they could...

Mr. Willard: I think they can, Your Honor, but the fact that someone may be designated a trainee, if they're authorized to assist in execution of the warrant, even though they may be there primarily to observe, we don't think that would trigger this... this bright line rule.

Assume too that it's odd that the Fourth Amendment, which puts all these protections around a smaller invasion of privacy, wouldn't fairly clearly prohibit a much bigger one with less purpose.

Now, still... I'm assuming that.

Still, a policeman might have read some cases and thought I could bring along... you know, assuming he knows all the statutes and cases... I can bring someone along to help me.

All right?

In aid of.

And now he thinks, well, this is in aid of because of the publicity, because of the law enforcement need for public relations, et cetera, et cetera.

Now, wrong though he may be, is that enough to grant him qualified immunity in the absence of cases going the other way?

I'd like you to focus right on that because I find that difficult.

Mr. Willard: I understand, Your Honor.

If... if the factual circumstances showed that he legitimately believed the people being brought in were there in aid of execution of the warrant...

Justice Breyer: What he thinks is what we know he thinks.

He thinks I have a policy here.

The policy is further a U.S. Marshals Service policy.

It's a general help.

It helps build support for law enforcement in the community, all the things you've heard.

And he says, I... I think this word in aid of, which I've seen in the... which he hasn't, but... but the words in aid of deserve a... constitutionally a broad interpretation.

Now, so he's thinking that.

Is... is... now, what's... is he... that's what I want you to focus on.

Why isn't that enough to get him over the... the hurdle...

Mr. Willard: Well...

Justice Breyer: of the need for clear establishment of the principle?

Mr. Willard: Your Honor, well, in the first place, factually here the officers testified that's not why they brought the police along.

They testified they were not there to aid in any particular law enforcement mission.

All of this is a post hoc rationalization of counsel, and so as a factual matter, the predicate is not supported in the record here.

Even if it were, we would not concede that that would be a... a reasonable interpretation of the law.

There is no court that had held explicitly that it was okay to bring in the media and that this was... satisfied the Fourth Amendment's requirements.

The only cases that have been cited here... there were only three cited.

Two of them, unpublished district court cases, were decided on the basis to the right to privacy.

They cited cases like abortion in... in terms of whether there was an invasion of privacy.

They didn't analyze the Fourth Amendment.

Justice Breyer: Is that the Moncrief and Higbee cases?

Mr. Willard: Yes, Your Honor.

That was the Moncrief and Higbee...

Justice Kennedy: Does the fact that they didn't even mention the Fourth Amendment help you or hurt you?

Mr. Willard: Well, it may be a... it may be a criticism of the lawyers in those cases for not raising it, but it doesn't show that the court squarely considered and decided the issue against us.

Justice Breyer: Do you want to add anything in respect to the common sense bit?

I mean, I'm willing to assume there's no case that says anything explicitly one way or the other here.

It's... without any cases at all, I'll say a person ought to know you don't have a greater intrusion of... but that same person, since we're going on common sense, might think he could bring a long a person in aid of.

So, I'm... I'm focusing you on what I call the common sense of the situation rather than...

Justice O'Connor: And add to the mix the existence of a U.S. Marshals Service policy that says it's okay.

It's in the joint appendix... is that it's agnostic on that question, whereas the Montgomery County Sheriff's policy was quite clear that it wasn't allowed.

So, the policies here: one was agnostic; the other one said don't do it

So, in this case the officers had policies that tilted against doing it, not in favor of it.

Even if they did, though, our position is this nebulous assistance to the law enforcement mission of deterring crime is not the kind of assistance that the Constitution permits implicit to a warrant.

Justice Ginsburg: Mr. Willard, what about the law professor and her students?

Mr. Willard: I understand, Your Honor.

I was hoping to get a chance to answer that.

I think if the law students have been authorized to provide legal advice to the police or to assist in prosecuting...

Justice Ginsburg: They're going along simply as a learning experience.

They're observing.

Mr. Willard: If that's all, then they wouldn't be allowed to do it.

But I know there are many programs where law students serve as prosecutors under special provisions or as... or might be able to provide legal advice on constitutional law to the police.

In that case it would be like a regular prosecutor who in our view normally would be allowed to go in, the theory that they could advise the police on legal issues that would come up, and that would relate to the purpose of actually executing the warrant.

But our position is if it's this broad, nebulous purpose of educating the public, that that is not permitted.

And that pretty clearly would not have been permitted in 1603.

In other words, this is not a new doctrine we're advocating.

It would have been clear...

Justice Scalia: They didn't have any law students in 1603.

Mr. Cordray: [Laughter]

Mr. Willard: I understand, Your Honor, but it would have been... it would have been repugnant to the common law in 1603 and to the Framers at the time the Fourth Amendment was adopted.

Justice Ginsburg: Yes, but it's hardly hypothetical as of the 1970's, 1980's, and 1990's.

Law schools do have these programs.

Mr. Willard: That's correct, Your Honor, and our position would be unless they're... they're authorized, as they might be, to provide legal advice and assistance to the police officers, they wouldn't be allowed to go into private homes without the consent of the residents.

Justice Kennedy: What Justice Breyer and Justice O'Connor are asking is also what... what concerns me.

We're concerned that there might have been an understanding in the law enforcement community that these ride-alongs were okay.

That might be wrong.

But does... doesn't that indicate that the right is not clearly established?

Mr. Willard: Your Honor, the record... the record in this case does not establish that it was clearly understood in the law enforcement community it was okay.

We cited some model guidelines of law enforcement adopted in 1974 in our brief which said that the media should not be permitted to go into private homes.

Justice Scalia: Well, but you're putting the burden on the wrong side.

It doesn't have to be clearly established that it was okay.

It's your burden to show that it was clearly established that it was not okay.

It seems to me it's your burden to show that it was a clearly defined... it was understood to be a violation of the Constitution.

Mr. Willard: Your Honor, I don't agree.

In this case where there is an entry into the home without legal authority, the burden is on the Government to show the authority to enter the home, and that was a clearly established principle.

And, therefore, if the police officers didn't know whether it was okay or not to bring the media into a private home, they violated clearly established law in doing so.

This is not an area that reasonable lawyers or judges could disagree about.

This is an area where any reasonable judge, any reasonable lawyer would conclude that when there is no legal authority, entry into the home is one of the clearest violations of the Fourth Amendment that can possibly be imagined.

Justice Souter: But the... I think the difficulty I have with your argument is that I think you will concede... I'm going to ask you in a second, but I think you will concede that there is... that there was at no time relevant here a clearly established line that no one but law... law enforcement authority in the strict, deputized, sworn sense of the word could come in to exercise... in the exercise of the warrant.

And I'm going to ask you, don't you concede that had there been a reasonable need for a translator outside the department, a translator could be brought in?

Do you concede that the owner of property could be brought in if it might be property that would be... be difficult to identify?

Would... would you agree that those people who are not sworn law enforcement officers could come in in... at least in aid of the execution of the warrant?

Mr. Willard: Yes, Your Honor, and there were cases establishing that that was appropriate.

Justice Souter: So, we... we can't start then, even if we accept your view of how the... the privilege... the burden on who has to establish what clearly... even if we accept your view on that, we can't start with the simple bright line that there was a clearly established principle that nobody but sworn law... law enforcement officers could go in.

The line is spelled out clearly in section 3105 with regard to search warrants, and it says officers or those in aid of the officers.

In our view that's the clear line.

Officers or those who are aiding the law... the officers in executing the warrant.

And here the... the defendants have conceded quite clearly and repeatedly that the media were not there to assist in any way in execution of the warrant.

Justice Scalia: But the...

Mr. Willard: They're not like the translator.

They're not like the locksmith.

Chief Justice Rehnquist: That... that depends very much on an interpretation of section 35 which is... 05 which is perfectly permissible, but by no means the only one, that when it says how such a warrant should be served, that defines the number of... that defines the maximum number of people who may accompany the officer.

And certainly that isn't clear on the face of the statute to me.

Mr. Willard: Well, Your Honor, but that's not all we rely upon.

We also rely upon the common law which establishes quite clearly that when the media went into the Wilson's home, they were committing a trespass.

Justice Souter: Well, they were committing a trespass unless they fall within this concept of being in aid.

And your view of what is in aid is that, you know, a relatively specific level of generality.

It's got to be in aid of... in... in relation to the specific details of the search, identifying the... the stolen goods, being able to communicate with the people in the house, and so on.

But the... the police's argument is that, well, it's still in aid, but at a somewhat higher level of generality.

It's in aid because we live in a political world and we've got to show that we're doing our job in to... for the voters to... to give us an appropriation or for Congress to think it's getting its money's worth.

And... and isn't that what creates the murk?

The murk is involved in deciding just what is sufficiently in aid, how specific that aid must be.

And isn't that the nub of the... the problem on qualified immunity?

Mr. Willard: Yes, Your Honor, that is the nub of the problem.

We contend that it's a fairly bright line, that is, in aid of execution of the warrant or not in aid of execution of the warrant.

And if it's in aid of something other than executing a warrant, in aid of educating the public, in aid of promoting confidence in law enforcement or whatever, that that is not authorized.

And I think the Framers of the Fourth Amendment would roll over in their graves if they thought that the media could be brought into private homes by the police, not to assist the police in executing a warrant, but to help broadcast to the public at large what they saw inside a private home.

Second, you say that it's up to the police to establish that there is an exception.

Why isn't it up to you to establish that there is no exception?

Mr. Willard: Well, Your Honor, going all the way back to the Entick case, which we cite in our brief, where Lord Camden explained that when you're entering into the home because of the high degree of protection even at the common law the home had, that it's not enough to have the silence of the books.

His position there is the silence of the books speaks against the authority of the intrusion; that is, that those who would intrude into the home at the common law, as well as today, have to show legal authority to go in, not the burden on the homeowner to show legal authority to keep them out.

Justice Breyer: Is the answer to this question no?

You have some cases that show that there are certain people you could bring in, the translator, the property identifier.

And now if I say were there any cases that you found anywhere about people you couldn't bring in aid, you couldn't find any.

Is that right?

Mr. Willard: As a matter of fact we could.

We found a number of cases, which we cited in our brief, including one of them that held there wasn't an invasion of privacy in a constitutional sense, but all of which held that it was a trespass.

Justice Breyer: No, no.

But we didn't... we don't have any case up there that says, and by the way, it violates the Fourth Amendment to bring along this kind of person, an ice cream vendor or something.

No such case.

Mr. Willard: No, Your Honor, we don't.

But we contend that it was clearly established and has been clearly established that for the Government to sponsor a trespass into the home is itself a violation of the Fourth Amendment, and a reasonable officer would not think otherwise.

If we're thinking in terms now of the... the officer trying to decide what's right and what's wrong, if he's read cases that say it's a trespass, it's unlawful for the media to come into a home, we would say it's not reasonable for him then to bring them in even though the cases only held it was unlawful and not a violation of the Fourth Amendment.

Justice Scalia: Although... although he also knows that he can trespass in the open fields without violating the First Amendment I suppose.

Mr. Willard: That's correct, Your Honor, because the Fourth Amendment has been held by this Court to protect houses and not open fields.

And in this case it's fairly clear the plain language of the Fourth Amendment speaks of houses, and that's what we're talking about, an intrusion into a house.

Justice Scalia: Can I ask you about your interpretation of section 3105?

It's on page 46 of the red brief in... in... in the Hanlon case.

It says, a search warrant may in all cases by served by any of the officers mentioned in its direction or by an officer authorized by law to serve such warrant.

Now, it has to be your position that serve there really means execute.

Right?

Is that your position?

Which I suppose you say is supported by... by the latter part of it because it goes on, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution.

Mr. Willard: Yes, Your Honor.

Justice Scalia: And it's your position that the mention of execution towards the end of that provision indicates that when they're talking about serving a warrant, they mean serving and executing.

Mr. Willard: Yes, Your Honor.

It's our position that this statute codifies the common law understanding that the execution of a warrant should be accomplished by law enforcement officers or those... those assisting, and that the... and that that's all that the warrant conveys authority to do.

Justice Scalia: It wouldn't do too much if it just specified who can deliver the warrant to the... or, I mean, you know.

You could have a messenger do that I suppose.

It doesn't really make a whole lot of... there's not a whole lot of importance to the merely delivering the paper.

Mr. Willard: That... that... that's correct, Your Honor.

And there is similar language in rule 4 of the Federal Rules of Criminal Procedure, which we also cite in our brief at page 39.

Chief Justice Rehnquist: Mr. Willard, what... what if the warrant says, so A, B, C, D, and E, F shall serve the warrant and accompany, and then a fourth law enforcement officer they decide to take along at the last minute because they hear there's some sort of a rumble out at the place where they're going to serve.

Now, is... is that bad?

Mr. Willard: I think the law has established that would be implicitly authorized by the warrant even though he's not named by name if he's there to assist them to deal with possible violence or something like that.

Now, if a law enforcement officer who is visiting... you know, the sister-in-law is visiting and is there just for fun and not to provide any assistance, then that might create a different issue.

But here again, we're not talking... I mean, we've had some very interesting and difficult hypothetical questions about exactly where the line is drawn among prosecutors or trainees or people like that.

That's not this case.

This case involves bringing in people who could not possibly have been thought to be there in order to assist in execution of the warrant.

They were there for a totally different, a private purpose which, going all the way back to Semayne's Case, has been prohibited in terms of an entry into the home.

Justice Scalia: But a private purpose that... that helped the police or the police thought helped the police.

Mr. Willard: Well, but only in this most nebulous sense.

I mean, this argument, if we credit it, would open the doors to anything.

It would open the doors to the high school civics class going in, the sister-in-law, or whatever.

Justice Breyer: But especially if we're in doubt, it's very close.

Does the First Amendment get some weight which would be weighed against you?

Mr. Willard: No, Your Honor.

Justice Breyer: Can we distinguish this from the other?

Mr. Willard: No, Your Honor, because what we're talking about here is media access at the sufferance of the police.

The police claim here a discretionary right to bring in media at their choosing to witness.

This is not much of a safeguard to the public.

Chief Justice Rehnquist: only thinking of...

Mr. Willard: Thank you, Your Honor.

Rebuttal of Richard A. Cordray

Chief Justice Rehnquist: Thank you, Mr. Willard.

Mr. Cordray, you have 3 minutes remaining.

Mr. Cordray: First, Your Honors, on the qualified immunity issue, the fact that there's a regular practice that's occurred frequently around the country, the silence of the books there has to weigh in favor of qualified immunity.

This practice has not been discredited, but it's engaged in frequently.

How could it possibly be that officers on the line who are merely obeying instructions to allow the media to come along with them... they don't have the policies in mind, Justice Breyer, nor do they have the case law in mind.

They had an instruction.

It came down from headquarters.

Those people knew the policy.

Those people had scrutinized the case law.

Justice Scalia: How do we know that... that not just ride-alongs but entering with the execution of a warrant was engaged in frequently?

What... what is your evidence for that?

Mr. Cordray: We speak to that.

It was taken judicial notice upon much... many submissions and much study: in the Fletcher case where the Florida Supreme Court decided in 1977 on practices engaged in in 1972; the Prahl case, the Wisconsin trial court found again that this was common custom and usage around the country for media to accompany police inside a residence when there was an issue of crime or other matter of great public interest that had occurred

Justice Scalia: What did they base it on?

Was there evidence to that effect in the case?

Mr. Cordray: There was.

There were voluminous submissions and affidavits of this.

Justice Breyer: But I'm not sure of the relevance of that because there have been instances of police who have been doing things that... pursuant to clear policy where the policy was clearly unconstitutional.

Mr. Cordray: That's true.

Justice Breyer: So... so, are we supposed to give any weight to the fact that... that there's some book in which somebody has an interpretation...

Mr. Cordray: No, but when the...

Justice Breyer: or even practice?

Mr. Cordray: When the practice is fairly widely engaged in, which is what was found in those cases, and it has not been ruled unconstitutional, it's very difficult to say officers should have known.